Opinion
Civil No. 00-178-FR
March 19, 2001
Alan Stuart Graf Swanson, Thomas Coon Portland, Oregon Attorneys for Plaintiff.
Kristine Olson United States Attorney William W. Youngman Assistant United States Attorney Portland, Oregon. Richard E. Buckley Special Assistant United States Attorney Seattle, Washington Attorneys for Defendant.
OPINION
The plaintiff, Kyle Wiederhold, brings this action pursuant to 42 U.S.C. § 1383 (c)(3) of the Social Security Act (the Act), to obtain judicial review of the decision of the Commissioner of Social Security (the Commissioner) denying his application for Supplemental Security Income (SSI) disability benefits.
BACKGROUND
Kyle Wiederhold filed an application for SSI benefits on June 1, 1996, claiming an inability to work beginning on May 19, 1978, but indicating an effective date of June 1, 1996, due to ineligibility as a result of his parent's income. The application was denied initially and upon reconsideration. Wiederhold claimed an inability to work due to his mental retardation and an Attention Deficit Hyperactivity Disorder. After a timely request for a hearing, Wiederhold, represented by counsel, appeared and testified before Administrative Law Judge Riley Atkins (the ALJ) on October 30, 1997 along with his caseworkers, his teachers, and his mother.
On August 15, 1998, the ALJ issued a decision finding that Wiederhold was not disabled within the meaning of the Act because he retained the residual functional capacity to perform heavy or very heavy work that represented substantial work capacity for jobs in the national economy at all physical demand levels. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.
FACTS
Kyle Wiederhold was born on May 19, 1978 and was nineteen years of age at the time of the hearing before the ALJ. At the time of the hearing before the ALJ, Wiederhold had received a modified high school diploma along with some job training.
On August 4, 1992, Wiederhold was evaluated at the Oregon Health Sciences University's Child Development Clinic by Christopher Williams, M.D., Leroy Carlson, M.D., Daryl Anderson, Ph.D., and Russell Jackson, Ph.D. This assessment team determined that Wiederhold had educable mental retardation and verbal dyspraxia.
On July 6, 1993, Wiederhold was examined by Daniel Baker, M.D. Dr. Baker reported that Wiederhold was brought in for an evaluation because his behavioral problems at school had increased, and he had been assessed as having multiple developmental delays, a possible learning disorder, and disruptive behavioral problems, including Attention Deficit Hyperactivity Disorder with conduct problems.
On August 3, 1993, Dr. Baker examined Wiederhold, once again diagnosing him as having a probable pervasive developmental disorder, possible learning disorder, probable Attention Deficit Hyperactivity Disorder, and conduct problems.
On August 17, 1993, Wiederhold received an outpatient neurology consultation from Gregory Clark, M.D. Dr. Clark noted that Wiederhold's mother related that at nine years of age, while he was in school, Wiederhold fell backwards in his chair and struck his head on the floor. Wiederhold was taken to the emergency room for evaluation, and on the way, he experienced what appeared to be a grand mal seizure. Dr. Clark reported that an electroencephalogram was normal, and Wiederhold's seizure was diagnosed as post-concussive seizure without a high risk for future epilepsy.
On September 7, 1993, Wiederhold was examined again by Dr. Baker, who noted disruptive behavioral problems. Dr. Baker continued to treat Wiederhold through 1994 and 1995 for allergy problems. On February 27, 1996, Dr. Baker performed an annual physical examination when Wiederhold requested a form to be completed for the Oregon Department of Motor Vehicles. Dr. Baker noted at that time that Wiederhold was generally healthy and had no sleeping problems, but had chronic problems with a pervasive developmental disorder and Attention Deficit Hyperactivity Disorder. Dr. Baker noted that Wiederhold was off medications.
An intellectual assessment was conducted by Paul J. Rethinger, Ph.D. in psychology, on July 15, 1996. Wiederhold received a verbal score of 68, a performance score of 73, and a full scale score of 69, reflecting a level of intellectual functioning in the mildly mentally retarded range in verbal and in the borderline range in performance. Dr. Rethinger noted that Wiederhold was working at McDonald's and had reported that he was doing much better with his hyperactivity since being off the medications. Dr. Rethinger stated that during his evaluation, there was no indication of emotional, psychological or behavioral dysfunction, but that Wiederhold was functioning in the mildly mentally retarded range intellectually. Dr. Rethinger noted that Wiederhold could not be competitive in a situation where a great deal of speed was called for, and that his mildly dyspraxic speech would suggest that Wiederhold should not meet the public in general, though he would be able to interact appropriately with co-workers.
On October 27, 1997, Dr. Baker completed a form entitled "Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment." Dr. Baker indicated that Wiederhold is moderately to severely limited in his ability to understand, remember, and carry out very short and simple instructions; maintain attention and concentration for extended periods; perform activities within a schedule; sustain an ordinary routine without special supervision; make simple work-related decisions; complete a normal workday or week without interruptions from psychologically-based symptoms; accept instructions and criticism from supervisors; and get along with co-workers or peers. Dr. Baker based his assessment on a combination of previous evaluations and a recent interview with Wiederhold's mother.
At the hearing before the ALJ on October 30, 1997, caseworkers and teachers involved in job training with Wiederhold testified about jobs that Wiederhold has held at the school cafeteria, McDonald's, Thriftway, and Dairy Queen. There was testimony regarding employment problems that Wiederhold has had with attendance, punctuality, and getting along with co-workers. There was testimony that McDonald's would not rehire Wiederhold, but a report in the record dated August 7, 1996 states that the restaurant manager at McDonald's reported that Wiederhold was doing fine with clean up and dishes and left because they would not promote him to counter work. At the time of the hearing, Wiederhold had been rehired at McDonald's and was working 25 to 30 hours per week.
CONTENTIONS OF THE PARTIES
Wiederhold contends that the ALJ erred in finding that he does not have a severe impairment other than mental retardation. Wiederhold contends that his medical records throughout his childhood and into his adult years, as well as the opinions of his caseworkers, teachers and employers, all substantiate his claim that he has additional significant impairments which regularly affect his ability to work. Wiederhold contends that he has established that he meets the listing of impairments 12.05, and that the court should remand this case to the Commissioner for an award of benefits.
The Commissioner concedes that the ALJ did not properly explain his findings regarding Wiederhold's impairments and residual functional capacity. The Commissioner contends that there is an inconsistency in the record that needs to be resolved as to the additional and significant limitation of function. The Commissioner contends that this court should remand this case to the ALJ and direct the ALJ to enlist the services of a medical expert to interpret the medical records and to provide an opinion relating to the existence of an additional impairment.
STANDARD OF REVIEW
The burden of proof rests upon the claimant to establish entitlement to disability benefits. To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for evaluating and determining whether a person is disabled under the Act. 20 C.F.R. § 404.1520, 416.920. At the first step, the plaintiff must prove that he has not engaged in substantial gainful activity after the alleged onset of disability. At the second step, the plaintiff must prove that he has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520 (c). If, at the third step, the plaintiff proves that his impairment or combination of impairments meets or equals a listed impairment, he is automatically found disabled regardless of age, education, or work experience. If the plaintiff cannot prevail at the third step, he must proceed to the fourth step, where he must prove that he is unable to perform his past relevant work. At the fifth step, the burden shifts to the Commissioner to establish that there is other work available in significant numbers in the national economy that the plaintiff can perform. If the Commissioner establishes that the plaintiff can perform other work, then he is found "not disabled." Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
ANALYSIS
Wiederhold contends that he met his burden at the third step to prove that his impairment or combination of impairments meets or equals a listed impairment in 12.05C, and that he should be automatically found disabled regardless of age, education, or work experience. Wiederhold contends that the record as a whole makes it clear that he has additional impairments that are severe and significantly limit his work activities. The Commissioner contends that the medical evidence is inconsistent, and the case should be remanded to the ALJ to obtain the assistance of a medical expert.
Listing 12.05 refers to significantly subaverage general intellectual functioning with deficits in adaptive behavior manifest before age 22. To meet Listing 12.05C, a claimant must establish a valid verbal performance, or full scale IQ of 60 through 70, and a physical or other mental impairment imposing an additional and significant limitation of function. Wiederhold `s mental status meets the requirements of the first step of Listing 12.05C. The ALJ found that "[t]he medical evidence reveals the claimant's additional alleged impairments are not severe because they do not result in more than a minimal impairment of his ability to engage in work activity." TR 19.
Dr. Baker, a treating physician, reported that Wiederhold suffers a severe impairment as the result of a pervasive developmental disorder. The ALJ concluded that Dr. Baker's opinion was not entitled to controlling weight because he had not seen Wiederhold in over a year; much of the information used to complete his report was gathered from Wiederhold's mother; and his opinion is not supported by substantial evidence in the record. The ALJ considered the opinion of Dr. Baker, the opinion of Dr. Rethinger, and other evidence in the record and concluded that Wiederhold retained the ability to perform simple, repetitive, work-related tasks.
The record in this case is inconsistent concerning the existence of an additional physical or other mental impairment imposing an additional and significant limitation of function as required by Listing 12.05C. The decision whether to remand for further proceedings or simply to award benefits is within the discretion of the court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Generally, an award of benefits is appropriate where no useful purpose would be served by further administrative proceedings or when the record has been fully developed and there is not sufficient evidence to support the ALJ's conclusion. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). This court concludes that the record in this case does not support an award of benefits. The court will remand to the ALJ to more fully develop the record.
CONCLUSION
The decision of the Commissioner is reversed, and this case is remanded to the Commissioner for further proceedings.